Local 242 of the Laborers International Union of North America (LIUNA!), affiliated with the Washing

372 NLRB No. 111 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Local 242 of The Laborers International Union of North America (Liuna!), affiliated with The Washington and Northern Idaho District Coun- cil of Laborers and The Laborers Northwest Regional Organizing Coalition and Gerald Smi- ley. Case 19–CA–275836 July 28, 2023 DECISION AND ORDER BY MEMBERS KAPLAN, WILCOX, AND PROUTY On January 6, 2023, Administrative Law Judge Brian D. Gee issued the attached decision. The General Coun- sel filed exceptions and a supporting brief, and the Re- spondent filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions only to the extent consistent with this Decision and Order and to adopt the recommended Order. The facts in this case are fully laid out in the judge’s decision. As most relevant to our decision here, no party disputes that, on July 29, 2020,2 Charging Party Gerald Smiley engaged in protected concerted activity when, together with another employee, he accused the Re- spondent of condoning a racist work environment, in- cluding by calling the Respondent’s political director a racist. However, as detailed by the judge, over the next 3 months, Smiley received multiple warnings from the 1 The General Counsel has implicitly excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The General Counsel excepts to the judge declining her request for an adverse inference to be drawn against the Respondent for not calling Charging Party Gerald Smiley’s direct supervisor as a witness. We reject the General Counsel’s exception. We agree with the judge and the Respondent that an adverse inference is unwarranted here as the testimony of Smiley’s direct supervisor would have been cumulative. See Roosevelt Memorial Medical Center, 348 NLRB 1016, 1022 (2006). We do not rely on the judge's citation to Brighton Retail, Inc., 354 NLRB 441 (2009), a decision that issued at a time when the Board lacked a quorum. The judge also cited Relco Locomotives, Inc., 358 NLRB 298 (2012), a case that was decided by a panel including inval- idly appointed Board Members. However, prior to the issuance of the Supreme Court's decision in NLRB v. Noel Canning, 573 U.S. 513 (2014), the United States Court of Appeals for the Eighth Cir- cuit enforced the Board’s Order, see NLRB v. Relco Locomotives, Inc., 734 F.3d 764 (8th Cir. 2013), and there is no question regarding the validity of that court's judgment. 2 All dates hereinafter are in 2020 unless otherwise indicated. Respondent for his inappropriate conduct, including us- ing his Respondent-provided cellphone for his personal nonprofit, in contravention of United States Department of Labor regulations, as well as his declining job perfor- mance and disruptive work behavior. In addition, Smiley complained of serious mental health challenges, but re- fused the Respondent’s insistence that Smiley see a health care provider who could attest to Smiley’s ability to work after he was placed on paid medical leave. Smi- ley also refused to cooperate in the Respondent’s third- party investigation of his racism accusations and instead only expressed interest in a large financial settlement for himself. On October 19, the Respondent informed Smi- ley that he was being discharged because he refused to take instructions regarding his job performance over the prior summer, refused to provide specific information or cooperate in the Respondent’s third-party investigation of his racism accusations, demanded a large financial settlement for himself as a condition for not taking his racism accusations to the media despite refusing to par- ticipate in the Respondent’s investigation, and failed to provide documentation from a health care provider relat- ing to his asserted mental health issues. The General Counsel argues that Smiley’s discharge violated Section 8(a)(1) pursuant to the Board’s mixed- motive analysis in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man- agement Corp., 462 U.S. 393 (1983). Under Wright Line, the General Counsel bears the burden of making an initial showing “sufficient to support the inference that protected conduct was a ‘motivating factor’ in the em- ployer’s decision [to take adverse action against an em- ployee]. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct.” Id. at 1089. To satisfy her initial burden, the General Counsel had to show that the Respondent har- bored animus towards Smiley’s protected concerted ac- tivity. See, e.g., Lucky Cab Co., 360 NLRB 271, 273– 274 (2014) (“The elements commonly required to sup- port [the General Counsel’s initial burden] are union or other protected activity by the employee, employer knowledge of that activity, and antiunion animus on the part of the employer.”) (quoting Austal USA, LLC, 356 NLRB 363, 363 (2010)), enfd. mem. 621 Fed.Appx. 9 (D.C. Cir. 2015). The judge found that the General Counsel did not meet her initial burden because, although Smiley engaged in protected concerted activity less than 3 months before his discharge, the General Counsel failed to show the Re- spondent had animus towards that protected conduct. The General Counsel excepts to the judge’s finding that she did not carry her initial burden. We find it unneces- sary to decide whether the General Counsel showed that the Respondent exhibited the requisite animus. Assum- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 ing, arguendo, that the General Counsel met her initial burden, the Respondent demonstrated that it would have discharged Smiley even in the absence of his protected conduct. See Encino Hospital Medical Center, 360 NLRB 335, 336 (2014) (finding it unnecessary to pass on whether the General Counsel carried his initial burden under Wright Line because, assuming arguendo that the General Counsel did, the credited evidence establishes that the employer would have discharged the employee in any event based on the employee’s misconduct).3 The Respondent successfully proved—through the credited testimony and documentary evidence—that it discharged Smiley because of its legitimate and substan- tial concerns about Smiley’s poor job performance and unacceptable behavior, all of which were unrelated to his protected concerted activity, and that it would have taken this action even in the absence of Smiley’s protected activity. As the judge noted, the record confirms the Respondent’s contentions about Smiley’s insubordinate, unruly, and, at times, erratic conduct, and the Respondent set forth those very reasons for discharging Smiley in his October 19 dismissal letter. Ever since he began working for the Respondent, Smi- ley, according to his coworkers, had been a difficult em- ployee who created a hostile work environment for them, from ransacking a coworker’s car to making offensive and inappropriate comments in the workplace. In the weeks before his discharge, Smiley’s misbehavior in- creased. For instance, despite the Respondent’s di- rective, Smiley continued to use, in contravention of fed- eral regulations, his Respondent-provided cellphone for his personal nonprofit. In addition, Smiley complained of serious mental health challenges in his emails to the Respondent but refused the Respondent’s request for him to provide medical documentation attesting to his ability to work. Moreover, even though he refused to partici- pate in the Respondent’s third-party investigation of his racism accusations, Smiley repeatedly insisted in writing and in his conversations with the Respondent that he be provided a large monetary payout or else he would take his racism accusations to the media. In fact, each time Smiley threatened to approach the media was in the con- text of Smiley urging the Respondent to pay him a finan- cial settlement instead. The Respondent’s bona fide issues with Smiley’s in- appropriate conduct demonstrated that the timing of Smi- 3 The General Counsel excepts to the judge’s finding that Smiley did not engage in protected concerted activity in several of his commu- nications with the Respondent after July 29, including threatening to go to the media with his racism accusations if he did not receive a substan- tial settlement payout. Under the circumstances here, we find it unnec- essary to pass on the General Counsel’s exception. Even if Smiley’s protected conduct were not limited to his July 29 racism accusations, we find that the Respondent still would have satisfied its defense bur- den because it showed that it would have discharged Smiley anyway for legitimate, nondiscriminatory reasons, notwithstanding Smiley’s protected conduct. ley’s discharge was not suspicious, despite having oc- curred just 3 months after Smiley’s protected concerted activity. Although the Respondent had tolerated some of Smiley’s past transgressions, the Respondent established that it discharged Smiley because of his worsening pro- longed misbehavior, which had become more alarming in the weeks before his discharge and which, in the Re- spondent's view, made it futile to continue trying to work with him by keeping him on as an employee. Having shown that it would have terminated Smiley even in the absence of his protected activity, the Respondent met its Wright Line defense burden. Accordingly, the Respond- ent's discharge of Smiley did not violate the Act. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dismissed. Dated, Washington, D.C. July 28, 2023 ______________________________________ Marvin E. Kaplan, Member ______________________________________ Gwynne A. Wilcox, Member ______________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD Helena Fiorianti, Esq., for the General Counsel. Danielle Franco-Malone, Esq., for the Respondent. Gerald Smiley, for the Charging Party. DECISION STATEMENT OF THE CASE BRIAN D. GEE, Administrative Law Judge. This case was tried before me in Seattle, Washington, from September 27 through 29, 2022. The General Counsel issued the original complaint in this matter on January 28, 2022, and amended it on February 9, 2022 (the complaint). The complaint is based on an unfair labor practice charge filed by individual charging party Gerald Smiley (Smiley) on April 19, 2021, against Local 242 of the Laborers International Union of North America (LiUNA!), affiliated with the Washington and Northern Idaho District Council of Laborers and the Laborers Northwest Re- gional Organizing Coalition (Respondent). The complaint alleges that Respondent violated Section 8(a)(1) of the Act by discharging Smiley on or about October 19, 2020, for engaging in protected concerted activities.1 On February 23, 2022, Re- 1 On September 19, 2022, counsel for the General Counsel (the General Counsel) served on Respondent a Notice of Intent to Further Amend the Amended Complaint by substituting in a revised par. 3. On the first day of trial, I granted General Counsel’s unopposed motion to LOCAL 242 OF THE LABORERS INTERNATIONAL UNION OF NORTH AMERICA (LIUNA!) 3 spondent filed a timely answer denying all material allegations. At trial, all parties were afforded the right to call, examine, and cross-examine witnesses, to present any relevant documen- tary evidence, to argue their respective legal positions orally, and to file post hearing briefs. Based on a careful review of the entire record, including post hearing briefs and my observation of the credibility of the witnesses, I make the following FINDINGS OF FACT2 I. JURISDICTION Respondent is a labor organization that is engaged in organ- izing employees in bargaining with employers located through- out the metropolitan area of Greater Seattle, Washington. It is an unincorporated association with a place of business in Des Moines, Washington. In conducting its operations during the 12-month period preceding issuance of the complaint, Re- spondent collected and received dues and initiation fees in ex- cess of $500,000 and remitted from its Seattle area facility ini- tiation fees in excess of $50,000 to LiUNA Headquarters locat- ed in Washington, D.C. Respondent has admitted, and I find, that at all material times Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. BACKGROUND FACTS3 A. Respondent’s Operations Respondent represents approximately 6,700 employees in various industries, including building construction, heavy highway, and utilities, primarily in King County, Washington, which includes the city of Seattle. It also represents public employees, such as water district employees, across the State of Washington, and public employees in the City of Seattle. (Tr. 296; Resp. Answer.) Respondent is an affiliate of the Washington and Northern Idaho District Council of Laborers (the District Council), which assists Respondent by processing grievances and negotiating new collective-bargaining agreements.4 In turn, the District Council is an affiliate of LiUNA. A related organization under the LiUNA umbrella is the Northwest Regional Organizing Coalition (NROC), which is an ancillary fund of LiUNA whose governing board is comprised of the business managers from each District Council. Upon request, NROC assists both local unions and district councils with organizing campaigns. While each of these organizations work with and assist one another, they are all separate entities. Under the LiUNA constitution, Respondent and all other local unions are fully autonomous entities. (Tr. 297–230.) amend the complaint to specify the job titles of various individuals and to allege them as Sec. 2(11) supervisors and/or Sec. 2(13) agents. As Respondent filed no amended answer, the allegations contained in amended par, 3 are deemed admitted. 2 Abbreviations used in this decision are as follows: “GC Exh.” for General Counsel’s exhibits; “R. Exh.” for Respondent’s exhibits; “Jt. Exh.” for joint exhibits; “Tr.” for citations to the hearing transcript; and “Resp. Answer” for Respondent’s answer. 3 To aid review, I have included certain citations to the record in my findings of fact. The citations are not necessarily exclusive or exhaus- tive, as my findings and conclusions are based on my review and con- sideration of the entire record. 4 The complaint does not allege, nor do I find, that any of these oth- er entities—LiUNA, NROC, or the District Council—committed or is liable for the alleged unfair labor practice. Three of Smiley’s family members were mentioned at vari- ous times during the hearing. The first was Smiley’s grandfa- ther, Gary Hicks. Hicks was the president and business manag- er of Respondent for 28 years. (Tr. 19.) The second was Smi- ley’s brother, Jermaine Smiley. Jermaine Smiley is currently the business manager of the District Council. During the events of this case, he was the assistant business manager of the Dis- trict Council. (Tr. 18, 215, 304.) The third was Travis Lam- oureux, Smiley’s cousin. Lamoureux is Respondent’s director of organizing and was Smiley’s direct supervisor. (Tr. 17–18.) Respondent is headed by Dale Cannon, the business manager and secretary-treasurer since 2005. He oversees the day-to-day operations of Respondent and makes sure that collective- bargaining agreements are enforced. He began working for Respondent in 1997, after spending 7 years in the field as a laborer and member. In 1997, he was appointed to the position of field representative by then-business manager Hicks. Under the LiUNA constitution, Cannon has the authority to discharge organizers and other staff. (Tr. 294–295; R-4, p. 85.) Second in charge is Mike Whiteside, the assistant business manager and president. As the assistant business manager, Whiteside aids Cannon by addressing staff issues pertaining to contract enforcement, grievances, and other issues. Whiteside works closely with Cannon and provided significant input regarding the facts of this case. (Tr. 505–506, 509.) Julie Taylor is the executive assistant to business manager Cannon. In this role, she was present at and prepared the minutes for most of Re- spondent’s meetings with Smiley. (Tr. 478–479.) Dale Bright was the political director during the relevant time period. In this capacity, he oversaw Respondent’s endorsement of politi- cal candidates and handled various matters relating to public policy. (Tr. 252–253.) As stated above, Travis Lamoureux is the director of organizing and was Smiley’s direct supervisor.5 (Tr. 17–18.) B. Smiley’s Prior Work Experience and Interactions with Others In February 2016, Smiley applied for and was hired as an or- ganizer for NROC. Smiley worked for NROC from February 2016 to December 21, 2017. (Tr. 456.) At NROC, Smiley experienced several issues which led to him being counseled over poor work performance, deficient teamwork, and not fol- lowing instructions. (Tr. 456–459.) In August 2017, NROC Chairman Bob Abbott asked Jermaine Smiley, who was then the assistant business manager at the District Council, to speak to Smiley to correct those performance issues. Jermaine asked for some time to address the situation. (Tr. 460–462.) In late 2017, Jermaine Smiley notified Cannon that Smiley was about to be fired from NROC and asked if Respondent would hire him. (Tr. 304.) During that process, Cannon and Abbott conferred with each other, as is their practice for hires between the two organizations. Abbott told Cannon about Smi- ley’s unaddressed performance problems and advised “don’t be hiring my problem.” (Tr. 463–464.) Nonetheless, Cannon decided to hire him because he had known Smiley for many years and considered him an intelligent and capable person. (Tr. 304–305.) In January 2018, Smiley began his new job as an organizer 5 Because the allegations in par. 3 of the amended complaint have been admitted, I find that Cannon, Whiteside, Taylor, Bright, and Lam- oureux were at all material times supervisors and/or agents under Sec. 2(11) or (13) of the Act, respectively. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 for Respondent. (Tr. 304.) Respondent has four organizers; their duties include targeting nonunion contractors who can be converted to union contractors. There are two primary methods by which this is accomplished. In the top-down model, organ- izers speak directly to the owners of the contractors to get them to sign a CBA with Respondent; in the bottom-up model, or- ganizers speak directly to workers in an effort to organize the business. (Tr. 296–297.) Smiley sometimes behaved in ways that colleagues found strange or off-putting. Fellow organizer Efrem Fields testified about an incident where somebody broke into his vehicle and ransacked it by throwing his personal belongings all about the car. Fields viewed footage from the surveillance camera in the parking structure and saw that it was Smiley who did that. When Fields told him about the ransacking, Smiley tried to blame it on a union member. Smiley owned up to it only after Fields told him that he saw on the video that it was Smiley. Fields also testified that Smiley would undercut coworkers, seek to take credit for things, and would get into confrontations with Lamoureux during meetings in the summer of 2020. Fields testified, “I’m not sure he was much of a team play- er. . . . I think he always wanted the credit, no matter what, on anything we did.” (Tr. 286–290.) Billy Hetherington, who was the assistant political director during the relevant time period, stated that Smiley would sometimes play music loudly in their office area of cubicles and would sometimes answer the office telephone line by pretending to be somebody else, sometimes even affecting an ethnic dialect to imitate that other employee. (Tr. 269–271.) Tanesha Roberson worked as an organizer for NROC from March 2019 to March 2021. She worked with Smiley on vari- ous joint campaign efforts by Respondent, NROC, and the Dis- trict Council. Roberson stated that she “prefer[ed] not” to work with Smiley because, “[s]ometimes he can be a bully, some- times he’s rude. He makes inappropriate jokes at times, and I just didn’t like it. I wasn’t comfortable with him.” She re- called that Smiley once said about her, “I’m not riding with that B-I-T-C-H, but something of the sort. But he was—it was just an inappropriate comment, jokes. He made those a lot.” (Tr. 133, 139–142.) “I couldn’t trust what he was saying, even though he had been there longer than I had. You know, I just couldn’t trust what he was saying because he would always give me bad and wrong information,” she testified, later adding, “That’s just him. That’s his personality. He just does manipu- lative things sometimes.” (Tr. 143–145). Even though Smiley testified on rebuttal, he failed to deny any of these examples, other than his referring to Roberson with a sexist slur. Smiley experienced conflict with his supervisors, as well. Smiley gave generalized testimony that, by mid-2018, he re- ported to Cannon that Lamoureux was yelling, screaming, and cursing at him and saying that Smiley did not know what he was doing. (Tr. 20–27.) In the summer of 2020, Smiley would get into confrontations with Lamoureux during the organizers’ meetings. “I think there were confrontations periodically be- tween Gerald [Smiley] and Travis Lamoureux, our lead organ- izer,” Fields testified. “Disagreements on different things, campaigns or targets or whatever.” (Tr. 290.) Prior to July 2020, Cannon had counseled Smiley three or four times about trying to get along better with Lamoureux. (Tr. 439–441.) There was also conflict between Smiley and Bright. (Tr. 535.) By November 2018, Bright had become openly critical of Smi- ley and would make inappropriate comments, such as that Smi- ley lacked sufficient hours in the field as laborer, was “a piece of shit,” was “useless,” told apprentices that they could do a better job than Smiley, that “Smiley has never been a Laborer,” and that Smiley got his job with Respondent only because of his brother’s influence. (Tr. 83–84, Resp. Exh. 6.) III. FACTS RELATING TO THE ULP ALLEGATION In addition to his position as an organizer, Smiley had creat- ed a side business called Chip In, a software application through which individuals could make secure donations to var- ious non-profit organizations. Smiley was the founder and chief executive officer of Chip In. (Tr. 45.) Respondent’s management was aware of this side business and did not object to it. However, on July 28, 2020,6 Cannon heard from others in the office that Smiley was using his union cellphone for the main contact telephone number for Chip In. Pursuant to its understanding of Department of Labor requirements, Respond- ent prohibits employees from using their union cellphones in connection with private businesses and for other than de mini- mis personal use, like calling family. This prohibition is thor- oughly covered in union training. (Tr. 317–319, 510–512.) Cannon immediately texted Smiley that afternoon to notify him that such personal use was prohibited and that he had to stop it. Smiley responded by agreeing to do so and Cannon expected that to happen. (Tr. 168–170, 321, 533; R. Exh. 1.) The following day, July 29, the long-simmering tensions be- tween Smiley and Bright came to a head at a public campaign event. Staff members from Respondent, other LiUNA locals, NROC, and the District Council assembled at a busy intersec- tion in downtown Seattle to conduct a “sign-waving event” on behalf of Sarah Reyneveld, a candidate for the 36th District of the Washington State House of Representatives. Smiley and Bright were among 5 to10 staff members present. (Tr. 30, 254.) Respondent was just returning to in-person events, which had been on hiatus due to the onset of the COVID-19 pandem- ic. (Tr. 255.) Given these concerns, the event was set up with health protocols in place, such as properly wearing face masks and social distancing. (Tr. 255–256, 280–281.) By modeling good safety protocols, Respondent sought to represent the can- didate in the best light at this highly public event. (Tr. 281.) Before the staff members spread out to the four-corners of the intersection, Hetherington reminded everyone to follow those safety protocols. (Tr. 258, 280–281.) On several occasions during the sign-waving event, Hether- ington observed Smiley wearing his mask incorrectly, with it drooping beneath his nose or as a “chin strap, down below the mouth.” (Tr. 258.) He asked Bright to remind everyone to follow the protocols. Bright initially sent out a group text in- structing everyone to wear their masks properly. (Tr. 259–260, 282.) When Smiley was again observed wearing his mask be- low his nose, Bright walked over and spoke to him directly. (Tr. 260, 281.) When Bright approached, Smiley was speaking face-to-face with candidate Reyneveld while wearing his mask improperly. (Tr. 35, 282.) Bright told Smiley to pull up his mask, but Smiley did not initially comply and continued his conversation with the candidate. That prompted a heated and profane exchange during which Bright said that, if Smiley did not want to wear his mask properly, he could “fucking go home.” Bright then walked away towards the opposite street 6 All dates hereafter will be for the year 2020 unless specified oth- erwise. LOCAL 242 OF THE LABORERS INTERNATIONAL UNION OF NORTH AMERICA (LIUNA!) 5 corner. (Tr. 32–34, 282–284.) Within a few minutes, Smiley asked District Council organ- izer John Collins to come along and speak with Bright. What ensued was a loud shouting match between Smiley and Bright during which Smiley (who is African American) called Bright (who is Caucasian) a racist.7 The shouting could be heard across several lanes of traffic. Collins was present, but it was unclear if he participated in this discussion other than being present.8 (Tr. 284–285; Jt. Exh. 2, Resp. Exh. 3.) During the sign-waving event, Bright texted Cannon about the shouting. (Tr. 329–330; Jt. Exh. 2, Resp. Exh. 3.) Later that morning, Cannon texted Smiley to come speak with him at the office. (Tr. 333; Resp. 2.) Cannon also conducted a pre- liminary investigation by interviewing others who were present: Corey Caple, Paul Thompson, and Hetherington. They report- ed to Cannon that Smiley had not been wearing his mask properly, was talking to candidate Reyneveld with his mask down, and was not socially distanced when he was speaking to Reyneveld. They also confirmed the loud shouting match be- tween Smiley and Bright. (Tr. 333–335.) The public shouting match concerned Cannon and Whiteside because it made Re- spondent look bad in front of the public, its membership, and the candidate—at a time and place when their actions should have been directed towards supporting the candidate. (Tr. 329– 330, 512.) On the afternoon of July 30, Cannon instructed both Bright and Smiley to report to the office at 8 a.m. the next morning. (Resp. Exh. 14.) The plan was for Cannon and Whiteside to speak to Bright and Smiley at the same time, find out what happened, set clear expectations to avoid future outbursts, and to issue discipline to both men. (Tr. 336–338, 514–515.) But Bright changed those plans by appearing at the office early on July 31, meeting with Cannon and Whiteside before Smiley arrived, stating that he could no longer work with Smi- ley, and announcing that he was retiring and that his last day of work would be October 4. Based on his retirement announce- ment, Cannon and Whiteside decided that it was unnecessary to discipline Bright. (Tr. 338, 513–515; Jt. Exh. 2.) Later that morning, Smiley arrived as planned and met with Cannon, Whiteside, and Lamoureux. Cannon told Smiley that this was a disciplinary meeting and counseled him about wearing the mask improperly, speaking to candidate Reyneveld about Chip In, and involving John Collins when Smiley called Bright a racist.9 (Jt. Exh. 3, p. 1.) Cannon also counseled Smiley for using the union cellphone for Chip In and to make more of an effort to get along with his peers and be more of a team player. (Tr. 343–350 and 515–516, Jt. Exh. 3.) Smiley responded that his mask did not fit right, that he had an irregular heartbeat and breathing issues, and that Reyneveld had initiated the discus- sion about Chip In. While there were references to BLM dur- ing this meeting, Smiley’s complaints about Bright were based on insults unrelated to race, such as that Smiley was a “piece of 7 Earlier that morning, Smiley and NROC organizer Paul Thompson asked Bright if he thought Cannon would sponsor the upcoming Black Lives Matter (BLM) protests that would be headed by the A. Philip Randolph Institute. Bright said that Cannon would not sponsor the BLM event. (Tr. 31.) 8 Collins was not called as a witness and Smiley did not explain how Collins participated in the discussion other than being present. (Tr. 34–37.) 9 This verbal counseling was not alleged to be an unfair labor prac- tice. shit” who got his job only because of Jermaine Smiley’s influ- ence and lacked sufficient hours in the field as a laborer. To- wards the end of the meeting, Smiley announced that he had a child on the way, news that surprised Cannon, Whiteside, and Taylor.10 (Jt. Exh. 3 and 8.) Following this meeting, management expected Smiley to promptly remove the union cellphone number from the Chip In website because Cannon had given him a direct order and be- cause Smiley had expressly agreed to follow that order.11 (Tr. 345, 516, 518; Resp. Exh. 1.) But this did not happen. Nearly 2 weeks later, on August 13, Cannon and Whiteside followed up and were surprised to find that Smiley had not removed the union cellphone number from the Chip In webpage. (Tr. 352 and 518.) Cannon ordered Smiley to come to the office on the morning of August 14 for a follow up meeting. (Tr. 352–353, 518; Resp. Exh.7.) Near midnight on August 13, Smiley sent to Cannon an email containing several alarming accusations. (Jt. Exh. 4.) This email, sent at 11:41 p.m., was the first time Smiley raised claims that he had experienced racism more broadly at Re- spondent. (Tr. 353–354, 522–523.) First, Smiley asserted that he had long experienced racism at the Respondent and that it impacted his mental state. He wrote: “the harassment at work and the racism I’ve experienced from co-workers since 2018 at the local, I haven’t slept much and have been in a deep depres- sion myself, wondering why I’m still here and questioning my existence in this world at times which isn’t me.” Second, Smi- ley asserted that management had not responded appropriately to his earlier purported complaints about racism. Third, Smiley signaled that he was experiencing depression: “We preach sui- cide prevention and depression to pass the word along to mem- bers who need it and need help, stuff thousands of packets to get them out to our members, I guess my life doesn’t matter so much since I’m a member also and need help.” (Jt. Exh. 4.) At 8 a.m. the next morning, August 14, Smiley met with Cannon, Whiteside, and Lamoureux. Taylor was also present to take notes. At the start of the meeting, Smiley said he was going to record the meeting on his cellphone, but Cannon told him not to and that he should not record any conversations without first obtaining the consent of all per- sons present. Smiley placed his cellphone face down in the middle of the table.12 (Tr. 519–520.) Cannon handed Smiley a last chance agreement, explaining that it was based on Smiley failing to follow instructions to remove the union cellphone number from the Chip In webpage.13 The document made clear that it was, “your last and final warning.” (Emphasis original.) (Jt. Exh. 6.) Smiley responded that he had instructed his “team” to change the phone number, but that the process took time. Cannon responded that, if the number could not be removed right away, the webpage should have been taken down. Smiley made general accusations of a “hostile 10 During the hearing, Smiley denied making this statement. But Cannon, Whiteside, and Taylor corroborated each other and credibly testified that Smiley did say that he had a baby on the way. 11 Cannon operates with a top-down management style where in- structions are followed immediately. Whiteside testified, “Dale Can- non is one of these kind of guys—he’s not a micro-managing type of person, but over the years, he—he gives us instructions and the expec- tations of him is once he tell[s] us something, it’s get done right away. It’s not an expectation we do it when we get around to it. It is done right away. And if we, you know, don’t do it right away, we’re—we’re being insubordinate.” (Tr. 518.) 12 Cannon, Whiteside, and Taylor all assumed that Smiley had stopped recording the meeting. (Tr. 490, 519.) But in actuality, Smiley continued to record the meeting. (Tr. 90; Jt. Exh. 16.) 13 This final warning was not alleged to be an unfair labor practice. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 work environment” and “racist environment”; Cannon told Smiley to come speak to him if something like that happened. Lamoureux spoke up by saying that Smiley knew better than to use union resources for a personal business. When Smiley pushed back, Lamoureux retorted that Smiley failed to follow through on tasks and that nobody wanted to work with him. Smiley then revised his story by saying that he did take down the union cellphone number 2 days before but that the process “takes two days.” When Smiley asked Cannon if he received the email he sent late the prior evening, Cannon kept them on subject by saying that the meeting was to discuss the cellphone. At that point, Smiley began to cry, and Cannon asked Whiteside, Lamoureux, and Taylor to leave the room. (Tr. 354–355 and Jt. Exhs. 5 and 6.) A. Issues Related to Smiley’s Declining Job Performance and Disruptive Behavior During the summer, Smiley was being disruptive in organiz- er meetings by interrupting others and making outbursts. (Tr. 148, 290.) Then, in August and September, Lamoureux com- plained to management that Smiley was becoming increasingly difficult to work with and was experiencing on the job perfor- mance problems, such as not following basic instructions, not checking in every morning, not submitting daily worksheets, not notifying Lamoureux about his affiliated events or activities during the workday, and not completing contractor profiles. (Tr. 368–369, 429–431; Resp. Exh. 10.) Lamoureux also re- ported that Smiley was being disruptive during organizer meet- ings, making hostile comments, and otherwise being insubordi- nate. (Tr. 290, 363–364, 368–369, 430.) These issues resulted in Cannon sending Smiley a text on September 10 to follow his supervisor’s instructions. (Jt. Exh. 12; Resp. Exh. 8, p. 12.). Also in summer, Smiley started a rumor that NROC was go- ing to discharge its minority organizers. At a rally, Smiley approached three organizers—Roberson, Paul Thompson, and Fernando Landa—and told them that NROC was going to get rid of its minority organizers. (Tr. 135–136, 469–470.) This required NROC chairman Bob Abbott and interim director Aubrey Newton to contact everyone and assure them that the rumor was false. (Tr. 136–138, 469–470.) NROC also investi- gated the issue. (Tr. 470.) In the past, Cannon had orally counseled Smiley to try to get along better with Lamoureux and his coworkers. (Tr. 348–350, 425–426, 439–441.) But on September 4, Cannon put in writ- ing his instructions for Smiley to refrain from making disrup- tive and undermining comments during meetings, distracting others during worktime, making hostile comments towards others, and surreptitiously recording conversations. (Jt. Exh. 7.) Then, by letter dated September 16, Cannon notified Smi- ley that he continued to be disruptive by making hostile com- ments to others and recording work conversations without per- mission. Cannon told Smiley that, going forward, he had to check in with Lamoureux every morning, follow Lamoureux’ instructions, and complete job tasks without being disruptive. (Jt. Exh. 17, p. 10.) On October 2, Cannon instructed Smiley to return his laptop by 2 p.m. that afternoon since they needed it for a training the following Monday. But Smiley did not do so. On October 5, Cannon sent a second email, telling Smiley to return the laptop or be deemed in violation of Cannon’s direct order. Smiley replied by alleging this request to be further evidence of retalia- tion against him. (Tr. 394–395; Jt. Exh. 19.) While Smiley did ultimately turn in the laptop, the difficulty in getting him to follow instructions was not lost on management. Whiteside testified, “Giving push back over simple things like taking the union cell number down from the Chip In website. Or bringing back the laptop, which is union property needed for a training. At the Local, if your boss tells you to do something, you do it.” (Tr. 532–533.) B. Investigation Into Smiley’s Claims of Discrimination in the Workplace Immediately after the August 14 meeting, Cannon conferred with Whiteside and Taylor about Smiley’s accusation of racism and hostile work environment at the Respondent. They decided that the best way to get an accurate picture of what, if anything, was happening would be to retain an outside firm to conduct the investigation. They decided against conducting the investi- gation themselves because a specialist would bring greater expertise and because employees would likely be more forth- coming with outsiders than with their managers. (Tr. 355–356, 485–486, and 520–521.) By late August, Respondent reached out to the law firm of Marcella Fleming Reed (Reed) and by September 3 was in the process of executing an engagement letter. (Tr. 523, Resp. 10.) On the morning of September 4, Cannon sent an email in- forming Smiley that Respondent was commencing an investiga- tion into his allegations of racism. (Jt. Exh. 7.) Cannon’s email triggered multiple lengthy email responses by Smiley. Later that morning, Smiley emailed to suggest that Respondent’s investigation was in retaliation for him supposedly saying that Abbott did not like minorities, that Respondent’s investigation was an effort to “pit other organizers against me,” and that any fair investigation would require that Smiley be able to give his side of the story. (Jt. Exh. 7.) The following day, September 4, at 9:44 a.m., Smiley sent a second email contending that he had first informed Cannon about racism in the workplace on Octo- ber 25, 2018, and had documentation to prove it. Smiley also insisted that Respondent’s investigation had to include his ver- sion of events to be fair: “Again, to conduct a fair and THOROUGH investigation, it MUST include my version of the story and someone reaching out to me.” (Jt. Exh. 8.) Two minutes later, at 9:46 a.m., Smiley asked, “why are we starting an investigation NOW? When I’ve been coming to you since October 2018?” (Jt. 9.) Six minutes later, at 9:52 a.m., Smiley told Respondent to, “make sure each individual is prepared to tell their statement and provide their proof and evidence to my team too when they will be asked to by my team.” (Jt. Exh. 10.) On September 8, Smiley sent a fifth email to Cannon ask- ing for the surveillance photos and videos that he believed Bright was taking of him.14 (Jt. Exh. 11.) Between September 11 and 14, Cannon and Reed reached out to Smiley multiple times to schedule an interview with him, assure him that the investigation was not disciplinary in nature, and that he would not be subject to any type of discipline for having raised his concerns. (Jt. Exh. 13, 14, 15.) But Smiley did not respond. Because Respondent intended to start its in- vestigation with Smiley, Cannon asked Whiteside on Septem- ber 14 to talk to Smiley about participating in the investigation. (Tr. 376 and 524.) Whiteside did so and Smiley agreed to meet him for lunch that day. (Tr. 525.) On the afternoon of September 14, Whiteside and business agent Carliss Bussey met for lunch with Smiley and his then- fiancé. (Tr. 525–526.) When Whiteside asked him to partici- pate in the investigation, Smiley declined, saying that it was a 14 At public events, such as the July 29 sign-waving event, Bright and Hetherington openly took photos for posting on Respondent’s Facebook page or other social media outlets. (Tr. 266–268; R-2.). LOCAL 242 OF THE LABORERS INTERNATIONAL UNION OF NORTH AMERICA (LIUNA!) 7 “fake bullshit investigation” and that it did not “benefit…me, and my team, and my family right now.” (Tr. 526–528.) Whiteside said that, if there were any issues with racism at the Respondent, the investigation could ferret it out, and the prob- lems could be addressed: “if we have issues or anything that you’re speaking of, you know, I think it helps us all as a group, you know, and we can get this behind us.” (Tr. 526.) But Smi- ley said that he was not interested in returning to work for the Respondent. (Tr. 527–528.) The lunch ended with Smiley threatening to take his case to the media “and blow this thing up” but that Respondent could settle with him “and I’ll just go my own way.” (Tr. 527.) During this meeting, Smiley made no mention of making any systemic changes at the Respondent which would benefit other employees. (Tr. 529.) The next day, September 15, Smiley sent to Reed and Can- non another email containing various troubling assertions. In particular, Smiley claimed that Cannon knew of and condoned racism at Respondent’s business, allowed staff to photograph and videotape Smiley, and commenced the investigation in retaliation for Smiley’s reports of racism and for supposedly spreading rumors about Abbott. Smiley also wrote that Can- non’s actions caused him to feel paranoid and scared to leave his house: “You’ve put my back to the wall and paranoid to leave my own house on any given day because who else are you going to having take photos of me and or my family who is with me? How is this a safe feeling for my wife and children who know this? Do you know what that does to their mind that the union is photographing us and them possibly?” (Jt. Exh. 16.) Smiley concluded by saying that he and his counsel were still collecting evidence and testimonies from coworkers and that “we will not need a third party investigation to prove our point.” (Jt. Exh. 16.) Based on this email, Cannon concluded that Smiley was mentally unstable and presented a potential danger to Respond- ent and to himself. On September 16, Respondent placed Smi- ley on paid medical leave because, “[y]our recent actions as well as your email indicate that you are currently experiencing psychological issues that are preventing you from being able to perform your job.”15 (Jt. Exh. 17, p. 3.) Respondent also pro- vided a medical questionnaire and other documents to give to his medical provider. If he needed to request a disability ac- commodation, Smiley could utilize these reports. (Jt. Exh. 17, pp. 4–9.) He was instructed to return the completed medical documentation by September 30. (Jt. Exh. 17, p. 3.) While Smiley had largely used up his accrued medical leave earlier in the year, Cannon nonetheless placed him on paid medical leave. (Tr. 387–388.) On September 30, Smiley emailed Cannon to accuse him of installing tracking and monitoring software on his laptop.16 Despite his earlier representations that he had been receiving 15 Smiley’s placement on paid medical leave was not alleged to be an unfair labor practice. 16 John Rogers, the owner of Discrete Dynamics, provides computer support for Respondent. He was called to testify about the software systems in place at Respondent. Rogers explained that Atera Agent is a software program that allows for automatic patching of computers and that Splashtop is a software component of Atera that enables remote desktop sharing so that an outside contractor like himself could remote- ly help the user with computer problems. In 2020, both software pro- grams had been installed on all of Respondent’s computers, would conduct periodic updates, and were not used to monitor employees. (Tr. 241–242, 245–250, 392–393.) therapy (Tr. 388.), Smiley added that he could not get a doc- tor’s appointment until 8 weeks later, on November 25, and that he was available to engage in settlement talks. In response, Cannon offered to meet at the office on October 2 at 8 a.m. But at 7:08 a.m. that morning, Smiley backed out, saying that he had appointments with “my counsel” and offered to instead meet on Monday, October 5. Cannon accepted. But on Mon- day morning, Smiley backed out of a face-to-face meeting due to “a parent teacher virtual conference this morning that I was just informed about” and because he did not think it safe to be at Respondent’s workplace by himself. Smiley offered a tele- phone call instead. (Jt. Exh. 18.) Cannon accepted. On October 5, Smiley spoke over the telephone with Cannon and Whiteside. Taylor was present to take notes. Smiley rep- resented that he had testimony from contractors, “had NAACP people,” and while his legal team wanted to seek 10 years of backpay (approximately $1.53 million) he was willing to settle for less. (Tr. 118–118, 399, 487–488, and 530–531; Jt. Exh. 21.) Cannon was not interested in settlement because that would leave unresolved Smiley’s claims of racism at the Re- spondent. (Tr. 399–400.) After concluding that Smiley was only seeking a payout for himself and was not genuinely interested in returning to work, Cannon decided to remove Smiley from paid administrative leave. (Tr. 400.) On October 9, Cannon informed Smiley that his leave was being converted from paid to unpaid.17 (Jt. 21, p. 3.) On October 16, Smiley reiterated his blanket assertions of racism in the workplace, warned that he was “drafting up my social media release to inform all our members of what’s going on inside there and preparing it for news outlets,” and said that his “team will…allow you to make the first settlement offer.” (Jt. 21, p. 1.) During the week of October 12, Cannon and Whiteside con- ferred over what to do about Smiley. They considered factors such as whether Smiley seemed sufficiently stable to return to work, his increased insubordination over work assignments, his refusal to timely provide information about a potentially debili- tating medical condition, and the conundrum that Smiley raised allegations of racism at the workplace yet refused to provide any information about those claims or otherwise be part of the process to address them. They decided that the situation could not just continue and that it had become necessary to terminate Smiley’s employment. (Tr. 404 and 533.) Before doing so, Cannon also conferred with counsel. (Tr. 403.) By letter dated October 19, Respondent notified Smiley of his discharge. (Jt. Exh. 23.) IV. CREDIBILITY A credibility determination may rest on various factors, in- cluding “the context of the witness’ testimony, the witness’ demeanor, the weight of the respective evidence, established or admitted facts, inherent probabilities and reasonable inferences that may be drawn from the record as a whole.” Hills & Dales General Hospital, 360 NLRB 611, 617 (2014), citing Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001). In making credibility reso- lutions, it is well established that the trier of fact may believe some, but not all, of a witness’ testimony. NLRB v. Universal Camera Corp., 179 F.2d 749 (2d Cir. 1950). 17 This conversion to unpaid leave was not alleged to be an unfair la- bor practice. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 This case presents a situation where it is not possible to rec- oncile the starkly different versions of events presented by the General Counsel and Respondent. In evaluating each side’s proffered facts, I have fully reviewed the entire record and care- fully observed the demeanor of all the witnesses. I have con- sidered the apparent interests of the witnesses; the inherent probabilities in light of other events; corroboration or the lack of it; consistencies or inconsistencies within the testimony of each witness and between witnesses with similar apparent in- terests. See, e.g., NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Testimony in contradiction to my factual findings has been carefully considered but discredited. Where there is in- consistent evidence on a material point, my credibility findings are incorporated into my legal analysis below. Having observed their demeanors and considered the context of their testimonies, I found Tanesha Roberson, Efrem Fields, and Mike Whiteside to be highly credible witnesses. Each of them listened to the questions, took a moment to recall the event, and carefully and directly answered the questions. Moreover, key portions of their testimonies were corroborated by others and, where applicable, by documentary evidence. With regard to Roberson, I note that she was never employed by Respondent and had no meaningful reason to color her tes- timony to curry favor from Respondent. In contrast, I found Smiley’s testimony to not be credible. First, much of his testimony was vague as to dates and details. For example, when I requested that a foundation be set for the important discussions in which Smiley purportedly told Cannon about harassment in 2018 and 2019, General Counsel was una- ble to do so, saying, “Your Honor, I don’t know if I’m going to get anything more specific.” (Tr. 25–26.) Second, upon get- ting caught in contradictions, Smiley was forced to change or revise his prior testimony on several key points. For example, on direct examination, Smiley asserted that he had written down specific examples of racist comments and jokes at the workplace occurring before July 2020, but those notes were on his Google drive at work, which he asserted Respondent must have deleted before he could print them. (Tr. 181–183.) Re- spondent’s computer systems contractor subsequently testified that he searched Smiley’s Google docs folder for search terms like “racism,” “jokes,” and “discrimination,” yet found no such documents that would support Smiley’s claims. (Tr. 242–245.) After sitting through that testimony, Smiley was forced to re- vise his earlier testimony, claiming on rebuttal that his notes were not in a Google document but rather in a Word document (thereby explaining why they were not found). (Tr. 552.) Third, many of Smiley’s claims in his own documents and tes- timony went unsupported. For example, Smiley represented in multiple emails to Cannon that he had documentary evidence and testimonials from others that would corroborate his claims of a racially hostile work environment dating back to October 2018. (Joint Exhibits 7, 8, 16, 20, and 21.) Yet no such cor- roboration ever materialized. Tellingly, in his highly detailed email to the Board agent during the investigation, Smiley cited no examples of racial discrimination occurring before July 2020. (Resp. Exh. 6.) Nor did General Counsel present any credible or corroborating evidence of such; the only evidence offered was Smiley’s vague and unsupported testimony and assertions in his own writings. Not a single witness corroborat- ed Smiley’s claims of concerted action. In fact, the General Counsel’s only other witness, Roberson, testified to the absence of any racial discrimination at Respondent. On cross- examination, Roberson was asked about racism at the Respond- ent:18 Q. Have you ever heard Mr. Cannon make remarks to the effect of, what’s wrong with your people? Why can't they read? Referring to African-American labor mem- bers? A. Never. Q. Does that sound like something you believe Mr. Cannon would say? A. Mr. Cannon would never say anything like that. He’s been su—so supportive to everybody. The members just love him. You can just tell. Like, when we have our monthly meetings, the members just love him. They -- he would not say something like that to anyone about any- thing. He’s a good person. He’s a good leader. Q. Have you ever experienced any type of backlash or unrec—not being receptive to raising complaints regarding racial harassment or racial discrimination, anything like that, from Local 242? A. No, not at all. If anything, like I said, he’s—the leadership there at Local 242 is pretty good. Because when I started, I was 21, and some of the projects that I went into, they weren't always so inviting and accepting of me being there. But what they will do is they will help you delegate those so they can help you work with those people so you can move forward. I was never—had any type of recomp—recom—whatever you said— repercussions on any of that. They've always been sup- portive. They've always tried to help me and coach me through those things. They would not penalize me for that. (Tr. 148–149.) Fourth, Smiley’s testimony on crucial points was contradicted by other witness and documentary sources. For example, when reviewing Respondent’s notes from the July 31 disciplinary meeting, he said that he never claimed to have a child on the way. (Tr. 39–40.) Yet, that denial was contradicted by the credible testimonies of Cannon, Taylor, Whiteside, and the meeting notes. (Tr. 343, 481, 516; Jt. Exh. 3.) Finally, in terms of demeanor, I found Smiley’s testimony to be self-serving and evasive, even on matters unimportant to the case. For example, while the credible evidence showed that Respondent hired Smi- ley in January 2018 because he was in jeopardy of being let go by NROC, Smiley characterized that move as being “promot- ed.” (Tr. 17, 125, 416, 460, 464.) I therefore do not credit Smiley on any facts other than those contained in the section above. Discussion and Analysis The complaint alleges that Smiley engaged in protected con- certed activity starting on July 29 by discussing his concerns regarding racism in the workplace, as well as other issues relat- ed to terms and conditions of employment, and that Respondent discharged Smiley because he engaged in that Section 7 activi- ty, thereby violating Section 8(a)(1).19 18 For purposes of context only, I note that Roberson identified her- self as an African American woman. (Tr. 150). 19 The complaint in par. 1 alleges that Smiley filed this charge on April 19, 2021, the final day of the 10(b) period and that the charge was served on Respondent by personal service the same day. In its answer, Respondent averred that it lacked sufficient information and therefore LOCAL 242 OF THE LABORERS INTERNATIONAL UNION OF NORTH AMERICA (LIUNA!) 9 Section 8(a)(1) of the Act provides that it is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. The rights guaranteed in Section 7 include the right “to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection.” See Bright- on Retail, Inc., 354 NLRB 441, 441 (2009). An employer vio- lates Section 8(a)(1) if it disciplines or discharges an employee for engaging in activity that is concerted within the meaning of Section 7 of the Act. If it is determined that the activity is con- certed, a violation will be found if the employer knew of the concerted nature of the employee’s activity, the concerted ac- tivity was protected, and there was an adverse employment action motivated by the employee’s protected, concerted activi- ty. Relco Locomotives Corp., 358 NLRB 37 (2012) (citing Meyers Industries, 268 NLRB 493, 497 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), supplemented 281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988)). Once the General Counsel establishes such an initial showing of discrimination, the em- ployer may present evidence, as an affirmative defense, show- ing it would have taken the same action even absent the pro- tected activity. The General Counsel may offer evidence that the employer’s articulated reasons are pretext or false. Relco, supra. In the instant case, there is insufficient evidence to establish a prima facie case. While there is evidence of Smiley’s pro- tected concerted activity, employer knowledge or belief, and an adverse employment action, the General Counsel has failed to demonstrate that Respondent’s decision to discharge Smiley was motivated by animus towards his protected concerted ac- tivity. Smiley engaged in protected concerted activity that was known to Respondent. At the July 29 sign-waving event, he accused political director Bright of being a racist.20 Racism in the workplace is a matter of mutual aid or protection, and there- fore the “protected” element is satisfied. Ellison Media, 344 NLRB 1112, 1113–1114 (2005) (employees’ common interest in eliminating offensive remarks from their workplace); Team- sters, Local 528 (Theatre Service Co.), 237 NLRB 258, 261 (1978) (“the right of employees to be free from racial discrimi- nation by an employer or union must be accorded the same primacy and protection as the right to safe working condi- tions.”) The element of concertedness was satisfied when Smi- ley on July 29 asked Collins to accompany him to confront denied that allegation. (Resp. Answer at 1.) Respondent also raised the affirmative defense of Sec. 10(b). (Resp. Answer p. 2.) This affirma- tive defense was not litigated at the hearing or otherwise addressed in Respondent’s post hearing brief. Given the general and non-specific nature of Respondent’s answer and that Respondent did not specifically address this affirmative defense at the hearing or in its brief, I find that Respondent waived it. United Government Security Officers of Ameri- ca International and its Local 129 (Akal Security), 367 NLRB No. 5, slip op. at 1 fn. 1 (2018); Atelier Condominium, 361 NLRB 966, 1001 (2014), enfd. mem. 653 Fed.Appx. 62 (2d Cir. 2016). 20 There is no evidence showing that Smiley raised issues pertaining to racism prior to July 29. Rather, the issues he cited prior to that date pertained to his employment qualifications, e.g., whether he had suffi- cient experience in the field working as a laborer, his judgment, and whether he attained his job through family connections. Bright, thereby enlisting Collins’ support for their mutual aid and protection. Fresh & Easy, 361 NLRB 151, 153 (2014). Concertedness was also established through Respondent’s be- lief that Smiley either engaged in group action or intended to initiate group action. Respondent’s own notes from the July 31 disciplinary meeting show that Cannon said, “The main thing is that you shouldn’t have called him a racist and rallying other organizers against Bright. You took Johnny over to talk to Bright.” (Jt. Exh. 3, p. 1.) In his testimony about the event, Cannon reinforced that point, saying: “it seemed to me that he was build—liked to build a consensus. You know, what he was complaining about to the people that would listen to him, and then, you know, it would be, like, a group effort that way.” (Tr. 350.) General Counsel thus demonstrated concertedness in fact and that Respondent’s managers were fully aware of such ac- tion. In her brief, the General Counsel also argues that Smi- ley’s comment that Bright was a racist was “inherently concert- ed”—that is, Smiley’s conduct should be viewed as concerted even absent a showing that employees were acting together because “systemic racism implicates all terms and conditions of employment.” (GC Br. at 30.) Because she already established concertedness in fact and because it would be for the Board, not me, to add systemic racism to the limited list of subjects thus far found to be inherently concerted, I do not pass on General Counsel’s contention. Finally, the adverse employment action was Smiley’s discharge on October 19.21 I therefore find that the General Counsel has establish protected concerted activity, Employer knowledge or belief, and an adverse employment action. The missing element is animus. The facts of this case do not support an inference of animus based on suspicious timing. Smiley was discharged on October 19, nearly 3 months after the time when he publicly called Bright a racist. While this duration could give rise to an inference of animus, I do not draw that inference here. Rather, I conclude that the timing of the discharge was dictated by developments occurring after July 29, including Smiley’s increasing resistance in August and September to taking instruction from supervision; his failure by the end of September to timely present documentation related to his self-reported issues with paranoia, depression, anxiety, and suicidal thoughts; and management’s conclusion in October that Smiley was not genuinely motivated to address issues of racism affecting all employees but rather sought to weaponize that issue to maximize a monetary settlement for himself.22 I also note a certain internal inconsistency to the General Coun- sel’s animus argument based on proximate timing. During the hearing and in her brief, General Counsel asserted that Smiley first raised purported issues of racism in the workplace in Oc- tober 2018; yet over the next 2 years, Cannon did not seize on any opportunities to discipline or discharge Smiley for having 21 General Counsel also argues that Smiley’s comments in his Au- gust 13 and September 14 emails were concerted because they looked toward group action. Meyers II, 281 NLRB 882, 887. I do not view Smiley’s comments as looking towards bona fide group action, but rather remained focused only on advancing his individual action. Id. citing Vought Corp., 273 NLRB 1290, 1294 (1984), enfd. 788 F.2d 1378 (8th Cir. 1986). For the same reason, I do not find Smiley’s threats to go to the media in his September 15 and October 16 commu- nications to be directed towards group action. 22 This explanation for the timing of the discharge also applies to any proximate timing argument based on Smiley raising issues of racism in the workplace in his emails in August, September, and October. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 raised those concerns. The General Counsel’s theory is that, when Smiley publicly called Bright a racist at the July 29 sign- waving event, he converted private complaints about racism into protected concerted activity. But, under the General Coun- sel’s inherently concerted theory, Smiley would have been engaged in protected concerted activity since October 2018— and that lengthy duration of time with no retaliation would cut against finding animus based on timing. Second, Respondent’s overall treatment of Smiley after July 29 fails to show animus towards his allegations of racism—in fact, Respondent’s conduct supports the opposite conclusion. Immediately after Smiley told management about racism in the workplace during the August 14 disciplinary meeting, Re- spondent took steps to retain the outside law firm of Marcella Fleming Reed to conduct an investigation. In addition to want- ing a specialist to look into the matter, management sought to avoid a situation where employees might be hesitant to be en- tirely forthcoming if interviewed by their managers. When Smiley’s own statements about suicide and depression caused management to place him on leave, Cannon chose to put him on paid administrative leave even though Smiley had largely exhausted his paid leave. Despite Smiley refusing to cooperate with Reed’s investigation, management made numerous good- faith attempts to get him to provide facts to support his allega- tions, told him that the investigation was not disciplinary in nature, and assured Smiley that he would not be subject to any type of discipline for having raised his concerns. Third, Respondent’s reasons for discharging Smiley were not pretextual. In the discharge letter, Respondent cited Smiley’s refusal to follow work instructions; to timely provide documen- tation related to his claims of depression, paranoia, and anxiety; and Respondent’s belief that Smiley was seeking to leverage his claims of racism to obtain a large monetary settlement. These reasons find ample support in the record and the General Counsel has not shown them to either be false or not actually relied on. Capitol Street Surgery Center, 372 NLRB No. 8, slip op at 8 (2022). I therefore find no animus based on pretext. Fourth, there are no statements or actions by Respondent showing general or specific animus. In her brief, the General Counsel points to Cannon’s instruction to Smiley on July 31 that he should not have involved Collins when Smiley ap- proached Bright and called him a racist at the sign-waving event. This statement by Cannon was not alleged as an unfair labor practice and I take no position on whether it was coercive under the Act. For purposes of this analysis, I do not find it to be evidence of animus towards concerted activity; rather, it is clear to me that Cannon’s instruction was directed towards avoiding any dilution of Respondent’s support for candidate Reyneveld at a highly visible campaign event. Fifth, General Counsel requests that I infer animus based on Respondent’s failure to call Lamoureux and Newton as wit- nesses. I do not draw that inference. A party need not call every witness at its disposal, especially if other record evidence made that testimony unnecessary. See Roosevelt Memorial Medical Center, 348 NLRB 1016, 1022 (2006). That was the case here. Moreover, an adverse inference for failing to present evidence is unwarranted if the party had good reason to believe the opponent failed to meet the burden of proof. See Auto Workers v. NLRB, 459 F.2d 1329, 1338 (D.C. Cir. 1972). Ac- cordingly, I decline to draw an adverse inference in light of Respondent’s counsel’s contention on brief that the General Counsel did not meet their burden of proof, as I have found. Finally, animus is not shown by factors such as Respondent committing other unfair labor practices, treating Smiley dispar- ately, or shifting its reasons for the discharge. In her brief, General Counsel argues that Respondent’s ani- mus towards Smiley’s protected concerted activity is shown because “[a]lmost every time Smiley engaged in protected con- certed activity, Respondent imposed an adverse employment action shortly thereafter.” This argument does not support finding that a causal relationship exists between Smiley’s pro- tected concerted activity and his discharge on October 19. The only adverse employment action that matters in this case is Smiley’s discharge on October 19. Any suspicious timing ar- gument needs to be tied to the discharge, yet the General Coun- sel’s timing argument was tied to other actions by Respondent, such as Smiley’s placement on paid administrative leave. None of the referenced actions by Respondent were alleged to be unlawful adverse employment actions and I have found none of them to be.23 Additionally, with regard to these referenced “adverse employment actions,” I do not find their timing to be suspicious or otherwise suggestive of animus. Rather, these actions by Respondent were prompt and non-discriminatory responses to conduct by Smiley. For example, the verbal warn- ing issued on July 31 was in response to Smiley admittedly wearing his face mask improperly at the flag waving event and for using the union cellphone number for his private business. The August 14 final warning was issued by Respondent pursu- ant to Smiley’s established failure to timely remove the union cellphone number from his personal business, the Chip In webpage. The September 4 directive to refrain from making comments hostile to others was prompted by Lamoureux’ com- plaints to management that Smiley was becoming increasingly insubordinate. The September 16 placement on paid adminis- trative leave resulted from Smiley’s September 15 email in which he discussed his feelings of fear, anxiety, and paranoia. Additionally, the fact that Respondent placed Smiley on paid leave even though he had largely exhausted that benefit points to an absence of animus. Finally, the October 9 placement on unpaid administrative leave was based on management’s con- clusion that Smiley was not genuinely interested in addressing matters of group concern but rather was seeking a large mone- tary payment for himself. Management’s conclusion was prem- ised on Smiley mentioning during the October 5 call a settle- ment with 10 years of backpay. I therefore find that none of these actions support a reasonable inference that Smiley’s exer- cise of Section 7 activity was a motivating factor in Respond- ent’s decision to discharge him on October 19. General Mo- tors, LLC, 369 NLRB No. 127, slip op. at 10 (2020). Based on the evidence, I find that the General Counsel has failed to meet the burden under Wright Line to show that Smi- ley was discharged because he engaged in protected concerted activity. CONCLUSION OF LAW Respondent did not violate Section 8(a)(1) of the Act, as al- 23 All of these actions occurred outside of the Section 10(b) period. Evidence from outside of the 10(b) period may, of course, be consid- ered as evidence of an unlawful motive for conduct occurring within the period. United Government Security Officers of America Interna- tional and its 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411, 429 (1960)). But Local 129 (Akal Security), 367 NLRB No. 5, slip op. at 14, fn. 17 (2018) (citing Machinists Lodge as explained herein, given the facts of this case, I do not infer animus here. LOCAL 242 OF THE LABORERS INTERNATIONAL UNION OF NORTH AMERICA (LIUNA!) 11 leged in the complaint. On these findings of fact and conclusion of law and on the entire record, I issue the following recommended ORDER The complaint is dismissed. Dated, Washington, D.C., January 6, 2023.